Sarah Cleveland Warns: "There is no bad-guy amendment to the U.S. Constitution"

Washington, D.C., June 9, 2009 – Many of the detainees at Guantanamo Bay have been labeled as suspects who cannot be tried because of national security concerns, yet too dangerous to be released.

The policy of prolonged detention without access to legal protections for those suspects has been hotly debated since it was imposed by the Bush administration. And a Senate committee weighing the future of the practice heard from a Columbia Law School professor who argued that not only is prolonged detention unconstitutional, it also harms U.S. interests.

“Prolonged detention is immoral. It is the hallmark of oppressive regimes that the U.S. has historically condemned around the globe,” said Sarah Cleveland, Louis Henkin Professor of Human and Constitutional Rights.

Cleveland was among the speakers at a Senate Judiciary Subcommittee on the Constitution hearing about the consequences of prolonged detention, which she said has “brought new converts to terrorism” and eroded the moral authority of the U.S.

“There is no bad-guy amendment to the U.S. Constitution,” she noted.

The U.S. policy on prolonged detention is out of step with other Western nations, and has “alienated the United States as a leader in counter-terrorism efforts,” said Cleveland, Faculty Co-Director of the Law School’s Human Rights Institute, which recently issued a white paper on detention without trial.

To be sure, Cleveland draws a distinction between known Taliban and al Qaeda fighters who are captured in the course of battle and, under international law, can be held until the end of a conflict. What she objects to is the “roving power” to seize people not involved in combat and hold them without charges.

That view was rejected at the hearing by David Rivkin Jr. ’85, a partner at Baker & Hostetler who served in the Justice Department under presidents Reagan and George H.W. Bush. Rivkin said where an enemy combatant is found and what he is doing should be irrelevant.

“You can use a Predator to launch a missile to kill someone in a jeep in Yemen … but if you have a commando unit grabbing this person you cannot detain him? That distinction is absurd,” he said.

Cleveland argued that anyone who is suspected of aiding an enemy without taking up arms should be afforded legal protections guaranteed under the Constitution.

“Prolonged detention without trial offends the world’s most basic sense of fairness,” Cleveland said in her prepared remarks. “Our government acquires its legitimacy and its moral authority as a leader in both counterterrorism efforts and human rights by acting in accordance with the law.”

The hearing was held on the same day the first Guantanamo detainee was transferred to New York to stand trial in a U.S. civilian court. Ahmed Khalfan Ghailani is accused of being involved in the bombing of U.S. embassies in Kenya and Tanzania in 1998.

Rivkin has long been an opponent of closing Guantanamo Bay and has argued the facility has largely been operated in accordance with international law. “We cannot fight this war unless we have a military detention paradigm,” said Rivkin, who also believes trying terror suspects on U.S. soil raises the risk of terror attacks.

However, Cleveland said national security and the proper treatment of suspects at Guantanamo could be reconciled. “Protection of personal liberties is one of the hallmarks of our legal traditions,” she said.

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